Federal Communications Commission DA 09-847 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MB Docket No. 09-54 Table of Allotments, ) RM-11520 FM Broadcast Stations. ) (Waverly, Alabama) ) NOTICE OF PROPOSED RULE MAKING Adopted: April 15, 2009 Released: April 17, 2009 Comment Date: June 8, 2009 Reply Date: June 23, 2009 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by Auburn Network, Inc. (“Petitioner”), licensee of Station WGZZ(FM), Waverly, Alabama. The petition proposes to substitute Channel 262A for vacant Channel 232A at Waverly, Alabama. The purpose of this requested channel substitution is to allow Petitioner to change the channel of Station WGZZ from Channel 262A to Channel 232A at Waverly. Petitioner has filed a Form 301 Application (with the requisite fee) seeking the channel substitution for Station WGZZ(FM).1 Station WGZZ(FM)’s channel substitution is intended to facilitate two additional changes: (1) a change of community of license for Station WAOQ(FM), Channel 262A, from Brantley, Alabama, to Goshen, Alabama, as that community’s first local service; and (2) a change in community and frequency of Station WEZZ(AM), from 930kHz at Monroeville, Alabama, to 920 kHz at Brantley, Alabama, as a replacement service. 2. We believe that the proposal to substitute Channel 262A for vacant Channel 232A at Waverly, Alabama, warrants consideration. The proposed channel substitution will accommodate the proposed channel substitution for Station WGZZ(FM) and, thus, the changes of community for Stations WGZZ(FM) and WEZZ(AM), resulting in a first local service at Goshen, Alabama, and a net gain in service to 8,672 persons.2 Moreover, these proposed changes can be accomplished without any 1 Petitioner filed a FCC Form 301 minor change application for Station WGZZ(FM) to change its channel from Channel 262A to Channel 232A at Waverly, Alabama (FCC File No. BMPH-20081216BKY), and was required to submit a filing fee pursuant to Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Report and Order, 21 FCC Rcd 14212 (2006) (“Revised Allotment Procedures R&O”). 2 A first local service at Goshen, Alabama, would promote priority three of the Commission’s FM allotment Federal Communications Commission DA 09-847 2 deleterious effect upon the service that can be made available using the vacant Class A allotment at Waverly. 3. A staff engineering analysis indicates that Channel 262A can be allotted at Waverly, consistent with the minimum distance separation requirements of the Commission’s rules, at coordinates 32-48-14 NL and 85-41-28 WL, with a site restriction of 13 km (8.1 miles) northwest of the community. Accordingly, we seek comment on amendment of the FM Table of Allotments, 47 C.F.R. Section 73.202(b), to substitute Channel 262A for vacant Channel 232A at Waverly, Alabama: Community Present Proposed Waverly, Alabama 232A 262A 4. The Commission’s authority to institute rule making proceedings, showings required, cut-off procedures, and filing requirements are contained in the attached Appendix and are incorporated by reference herein. 5. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules,3 interested parties may file comments on or before June 8, 2009, and reply comments on or before June 23, 2009, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Federal Communications Commission, Office of the Secretary, 445 Twelfth Street, SW, TW-A325, Washington, D.C. 20554. Additionally, a copy of any filing should be served on counsel for Petitioner as follows: Mark N. Lipp, Esq. Scott Woodworth, Esq. Wiley Rein LLP 1776 K Street, N.W. Washington, D.C. 20006 6. Parties must file an original and four paper copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission’s contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission’s Secretary at 236 Georgia Avenue, N.E., Suite 110, Washington, D.C. 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial priorities, which are: FM allotment priorities are: (1) first fulltime aural service; (2) second fulltime aural service; (3) first local service; and (4) other public interest matters. Co-equal weight is given to priorities (2) and (3). See Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 FCC Rcd 88 (1982), recon. denied, Memorandum Opinion and Order, 56 RR2d 448 (1983). 3 See 47 C.F.R. §§1.415 and 1.419. Federal Communications Commission DA 09-847 3 overnight mail (other than U.S. Postal Service Express Mail or Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW, Washington, D.C. 20554. All filings must be addressed to Marlene H. Dortch, Secretary, Federal Communications Commission, Office of the Secretary. Any filing that is not addressed to the Office of the Secretary will be treated as filed on the day it is received in the Office of the Secretary. See 47 C.F.R. § 1.7. Accordingly, failure to follow the specified requirements may result in the treatment of a filing as untimely. 7. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to a rule making proceeding to amend the FM Table of Allotments, Section 73.202(b) of the Commission’s Rules.4 This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.5 8. For further information concerning this proceeding, contact Deborah A. Dupont, Media Bureau, at (202) 418-7072. For purposes of restricted notice and comment rule making proceedings, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a Notice of Proposed Rule Making until the proceeding has been decided and such decision in the applicable docket is no longer subject to reconsideration by the Commission or review by any court. An ex parte presentation is not prohibited if specifically requested by the Commission or staff for the clarification or adduction of evidence or resolution of issues in the proceeding. However, any new written information elicited from such a request or any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in the particular docket unless the Commission specifically waives this service requirement. Any comment which has not been served on the Petitioner constitutes an ex parte presentation and shall not be considered in the proceeding. Any reply comment which has not been served on the person(s) who filed the comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Assistant Chief Audio Division Media Bureau 4 See Certification that Section 603 and 604 of the Regulatory Flexibility Do Not Apply to Rule Making to Amend Sections 73.202(b), 73.504 and 73.606(b) of the Commission’s Rules, 46 Fed.Reg. 11549 (February 9, 1981). 5 See 44 U.S.C. 3506(c)(4). Federal Communications Commission DA 09-847 4 APPENDIX 1. Pursuant to authority found in 47 U.S.C. Sections 4(i), 5(c)(1), 303(g) and (r), and 307(b), and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS PROPOSED TO AMEND the FM Table of Allotments, 47 C.F.R. Section 73.202(b), as set forth in the Notice of Proposed Rule Making to which this Appendix is attached. 2. Showings Required. Comments are invited on the proposal(s) discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent(s) will be expected to answer whatever questions are presented in initial comments. The proponent of a proposed allotment is also expected to file comments even if it only resubmits or incorporates by reference its former pleadings. It should also restate its present intention to apply for the channel if it is allotted and, if authorized, to build a station promptly. Failure to file may lead to denial of the request. 3. Cut-off protection. The following procedures will govern the consideration of filings in this proceeding. (a) Counterproposals advanced in this proceeding itself will be considered, if advanced in initial comments, so that parties may comment on them in reply comments. They will not be considered if advanced in reply comments (see 47 C.F.R. Section 1.420(d).) (b) Petitions for rule making which conflict with the proposals in this Notice will be considered as comments in the proceeding, and Public Notice to this effect will be given as long as they are filed before the date for filing initial comments herein. If they are filed later than that, they will not be considered in connection with the decision in this docket. (c) The filing of a counterproposal may lead the Commission to allot a different channel than was requested for any of the communities involved. 4. Comments and Reply Comments; service. Pursuant to applicable procedures set out in 47 C.F.R. Sections 1.415 and 1.420, interested parties may file comments and reply comments on or before the dates set forth in the Notice of Proposed Rule Making to which this Appendix is attached. All submissions by parties to this proceeding or by persons acting on behalf of such parties must be made in written comments, reply comments, or other appropriate pleadings. The person filing the comments shall serve comments on the petitioner. Reply comments shall be served on the person(s) who filed comments to which the reply is directed. A certificate of service shall accompany such comments and reply comments (see 47 C.F.R. Section 1.420(a), (b) and (c).) Comments should be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554. 5. Number of Copies. In accordance with the provisions of 47 C.F.R. Section 1.420, an original and four copies of all comments, reply comments, pleadings, briefs, or other documents shall be furnished the Commission. Federal Communications Commission DA 09-847 5 6. Public Inspection of Filings. All filings made in this proceeding will be available for examination by interested parties during regular business hours in the Commission's Reference Information Center, at its headquarters, 445 12th Street, S.W., Washington, D.C.